MRS W SIBANDA v (1) BARNET COMMUNITY HEALTHCARE NHS TRUST (2) JEFF TAN (3) EMILY NEWMAN [2002] UKEAT 496_01_2108

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 496_01_2108

Case No Appeal No. EAT/496/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS W SIBANDAAPPELLANT

(1) BARNET COMMUNITY HEALTHCARE NHS TRUST (2) JEFF TAN (3) EMILY NEWMANRESPONDENT

Before

His Honour Judge D Serota

Date 21 August 2002

[1]APPEARANCES For the Appellant Mr G Clarke Solicitor Messrs Underwoods Solicitors 83/85 Marlowes Hemel Hempstead HP1 1LF For the Respondents No appearance or representation by or on behalf of the Respondents JUDGE D SEROTA QC This is an appeal from a Decision of the Employment Tribunal at Watford, promulgated on 13 March, chaired by Mr C N Ingham. The Tribunal dismissed the Applicant's claims of sex and race discrimination because they were out of time.

[2]Grounds of appeal were launched, and the matter came before the Employment Appeal Tribunal, chaired by Mr N Underhill QC on 9 October of last year. They considered the grounds of appeal were unsustainable, but there was one further matter which occurred to the Tribunal that did not appear in the grounds of appeal, and that is that although it was right to say that two of the matters of which the Applicant complained were out of time; the third of which she complained was manifestly within time.

[3]We will just briefly explain the background. On 29 February an incident occurred at work, the Applicant being employed by the Respondent; she was assaulted by the Second Respondent, Mr Tan. An investigation took place on 6 March and it was said that an officer of the First Respondent was instructed to find that Mr Tan had not assaulted the Applicant and that there was a further investigation on 8 June.

[4]Complaints were made of discrimination in relation to the events of 29 February, 6 March and 8 June. The first ET1 was presented on 8 June, the second on 12 June. On 16 August, the Employment Tribunal ordered particulars to be supplied and set a date for a preliminary hearing to determine whether the complaints were in time. It was originally fixed for October 2000 but was heard, in fact, on 13 February. On 13 February, the Employment Tribunal decided it was not just and equitable to extend time and dismissed all of the claims, including that relating to 8 June, which was manifestly within time.

[5]We have already mentioned the Decision of the Employment Appeal Tribunal, but it is important to note the following: when the matter came before the Employment Appeal Tribunal and the fact that the events of June appear to have been overlooked, Mr Underhill had this to say:

"It seems to us very unlikely that the Tribunal deliberately intended to dismiss the claim in its entirety. It seems to us much more likely that the wording of the formal order simply overlooked the fact that potentially one part of the Appellant's claim remained. If this point were drawn to the attention of the Tribunal by correspondence, or if necessary by formal application for review, we think it likely - though we cannot of course pre-judge the matter - that the point would be clarified in the Appellant's favour. However, as matters stand at the moment there is an arguable ground of appeal on that distinct point. We formally allow the appeal to proceed on that point only. For the reasons we have given we think it very unlikely that the appeal will need to be pursued, but that will of course depend on what steps the Tribunal takes. The Appellant will no doubt consider carefully whether she wishes to pursue her complaint in this surviving limited respect."

The point that the EAT had noted seems manifestly correct and, indeed, it seems to have been accepted by Nabarro Nathanson, who acted on behalf of the First Respondent, because they wrote to the Employment Appeal Tribunal on 12 October saying that so far as they were concerned, the Respondent would not wish to oppose the appeal proceeding on that one ground alone.

[6]Obviously, the sensible course would have been for the Applicant, immediately, to refer to the matter to the Employment Tribunal, and invite the Employment Tribunal to agree to review its Decision, and to invite Nabarro Nathanson to agree that this course be adopted. Alternatively, she could have invited Nabarro Nathanson to agree that the appeal be allowed and the matter remitted to the Employment Tribunal. It is very far from clear to us what exactly has happened. We know that there is a personal injury claim and Mr Clarke has invited us, in those circumstances, to allow the appeal, remit the matter to the Employment Tribunal, but stay these proceedings, pending the determination of the proceedings in the County Court.

[7]It is most unfortunate that events have taken this course. This matter should not, in fact, have come back to the Employment Appeal Tribunal, it should have been agreed between the parties. We have little doubt that if appropriate steps had been taken on both sides, this matter would have been remitted to the Employment Tribunal or returned to the Employment Tribunal, without the necessity of Mr Clarke having to appear before us today.

[8]There is a further matter with which we express concern. The Practice Direction dealing with appeals to the Employment Appeal Tribunal makes clear that skeleton arguments must be lodged not less than two weeks before the date of the hearing. Mr Clarke, whose case this is not, was unaware that this was the time limit. We have only just received the Skeleton Argument, although it bears the date "13 August", it was not, in fact, faxed to the Employment Appeal Tribunal until 19 August. This is completely unacceptable, and we require an explanation from the senior partner of the firm as to why the Skeleton Argument was not lodged in accordance with the Practice Direction.

[9]It would also be helpful to know why it is that this matter has had to come back to the Employment Appeal Tribunal, rather than having been determined by agreement or on the basis of a review by the Employment Tribunal; nonetheless, it seems to us that this matter must be remitted. Having given this matter consideration, it seems that it is not appropriate for us to determine whether or not these proceedings should be stayed. That is a matter that can be dealt with best by the Employment Tribunal, and so we remit the matter to the Employment Tribunal for their further consideration. We see no reason why it should be remitted to a differently constituted panel; it is a matter for the Employment Tribunal as to how the matter is listed.